M V CHAPPAN Vs. PRARU

JUDGEMENT

(1.) The plaintiff, the trustee of a devasom, sues to redeem a mortgage of Rs. 50 created by the plaintiff s karnavan on the 21st January 1891. It is admitted that on the 21st February 1905, the same karnavan mortgaged the lands included in the mortgage instrument aforesaid with certain other lands for Rs. 1,650. On the same day he also mortgaged the equity of redemption for Rs. 1,500. It is conceded this mortgage for Rs. 1,650 was a consolidation of three previous mortgages, due for Rs. 900, dated 25th March, 1890 and the other for Rs. 700 on the 13th February 1890 and the mortgage for Rs. 50 which the plaintiff seeks to redeem. The mortgage for Rs. 900 has been already declared to be binding on the property.

(2.) The District Judge held that the mortgage of Rs. 50 is now no longer in force as it is merged in the mortgage for Rs. 1,650 and that the plaintiff is bound to sue to set aside the mortgages of the 21st February 1905; and as a suit to redeem on those mortgages or set them aside will not lie in the Munsif s Court he dismissed the suit.

(3.) The question in dispute is concluded by authority. The proper valuation of a suit to redeem a mortgage is the amount of the mortgage or mortgages admitted by the plaintiff to be binding on him not the mortgages set up by the defendant. Otherwise if the plaintiff files this suit in a Court of higher jurisdiction and succeeds in proving that the mortgages binding on him are less than Rs. 2,500, his plaint may be returned to him to be filed in the Munsif s Court. In a suit of this nature the question of jurisdiction has to be decided upon the averments in the plaint not with reference to the pleas of the defendant, see Chandu v. Kombi (1886) I.L.R. 9 Mad. 208 at p. 21 which is directly in point.